Himachal Pradesh High Court
____________________________________________________________________ vs Baldev Singh And Others on 3 December, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 288/2014 Reserved on: 21.11.2015 .
Decided on: 3.12.2015 ____________________________________________________________________ Rasalu Ram ..Appellant Versus Baldev Singh and others ..........Respondents of ____________________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting? 1 Yes.
rt For the Appellant : Mr. Ajay Sharma, Advocate.
For the Respondents :
Mr. Ajay Chandel, Advocate, for respondents No. 1 to 4, 5(e) to 5(g), 5(h)(i) to 5(h)(vii).
____________________________________________________________________ Rajiv Sharma, Judge :
This Regular Second Appeal has been instituted against judgment dated 22.3.2014 rendered in Civil Appeal No. 139- G/2013/2003 by the learned Additional District Judge-(II), Kangra at Dharamshala, Circuit court at Dehra, District Kangra, HP.
2. "Key facts" necessary for adjudication of the present appeal are that the respondents-original applicants preferred an application against the appellant-defendant under Section 144 CPC for restoration of the possession of the land in question and also for recovery of mesne profits of `1,25,000/-. According to the averments 1 Whether the reporters of the local papers may be allowed to see the judgment? No. ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 2 made in the application, respondents by way of registered sale deed dated 16.9.1971 had purchased 1600/3686 shares of land as detailed .
in the application, vide sale deed dated 16.9.1971 from Raj Devi for a consideration of `12,000/-. Appellant filed a Civil Suit No. 93/1972 for pre-emption and said civil suit was decreed by the learned Sub Judge Dharamsala vide judgment and decree dated 25.9.1975. Respondents filed an appeal before the District Judge, Kangra at Dharamshala.
of Appeal was dismissed. Respondents then filed Regular Second Appeal bearing RSA No. 66/1976 before this Court against the judgment and decree of Sub Judge as well as District Judge. Regular Second Appeal rt was allowed by this Court on 21.4.1986. Appellant thereafter filed an SLP before Hon'ble Supreme Court of India, which was dismissed on 9.1.1995. Respondents were entitled to get back the possession of the suit land in question by restoration.
3. Application was contested by the appellant. According to him, possession of the land in question did not pass on to the respondents after sale deed in their favour by Raj Devi, mother of appellant. It was in his exclusive possession. Issues were framed by the learned Sub Judge Kangra at Dharamshala. He allowed the application on 21.6.2003. Appellant-respondent filed an appeal before the learned Additional District Judge. He dismissed the appeal on 22.3.2014. Hence, this appeal.
4. Mr. Ajay Sharma, Advocate, on the basis of substantial question of law framed has vehemently argued that the Courts below ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 3 have not correctly appreciated the oral as well as documentary evidence.
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5. Mr. Ajay Chandel, Advocate, has supported the orders passed by both the Courts below.
6. I have heard the learned counsel for the parties and also gone through the record carefully.
7. Respondents have purchased 1600/3686 shares of land of in question by way of a registered sale deed dated 16.9.1971 from Raj Devi for a consideration of `12,000/-. A written compromise was arrived at between the parties vide Ext. P8. Appellant filed a civil suit, rt as noticed herein above, bearing No. 93/1972 before Sub Judge, which was decreed. Appeal filed against same was dismissed. However, this Court in RSA No. 66/1976, reversed the order and judgment rendered by Courts below vide Ext. PW-1/E. SLP was preferred against judgment Ext. PW-1/E, which was dismissed by the Hon'ble Supreme Court of India on 9.1.1995 (Ext. PW-1/F).
8. PW-1 Dhani Ram testified that he was appointed by the respondents as their Attorney vide Power of Attorney Ext. PW-1/A to Ext. PW-1/D. Land in question was purchased by the respondents on 16.9.1971. Possession was delivered to them. They remained in possession for about 4-5 years. He has also given the description of the litigation which has gone upto the Hon'ble Apex Court. According to him, the annual income since 1976 varied from `13,000-15,000/- per annum. He also reiterated that the possession was handed over to the respondents at the time of sale.
::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 49. RW-1 Rasalu Ram deposed that previously land was possessed by his father Ganga Ram and after his death, he has .
inherited the suit land.
10. RW-2 Milkhi Ram deposed that the suit land was gifted by Ganga Ram to his wife Raj Devi. She further sold the same in favour of the respondents but the possession was never delivered. Appellant was in exclusive possession of the entire land.
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11. According to the averments made in the annexure P-2, matter was settled between the parties. Thereafter, appellant has filed suit for preemption, which was decreed. Learned first appellate Court rt has dismissed the appeal preferred by the respondents but this court allowed the Regular Second Appeal and SLP preferred against judgment and decree of this Court was dismissed by the Hon'ble Apex Court. Thus, respondents were entitled for restoration of their possession qua the land in question as possession was obtained by the respondents in execution of the judgment and decree passed by the trial Court and the first appellate Court. It is reiterated that both the judgments were set aside by this court and judgment of this Court was upheld by the Hon'ble Apex Court.
12. Now, the Court will advert to the issue of mesne profits.
PW-1 Dhani Ram has deposed that respondents are entitled to mesne profits from 1976 onwards. PW-2 Amar Nath, Office Kanungo has prepared Naksha Normal Ravi Ext. PW-2/A to Ext. PW-2/G. RW-1 Rasalu Ram has deposed that only a small portion of land is cultivable ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 5 and crop was grown only during rainy season. However, the annual income as per Ext. PW-2/A to Ext. PW-2/G was ` 2,000 per annum.
.
13. Courts below have rightly calculated mesne profits at the rate of `2,500/- per annum from the year 1976 till 21.6.2003.
14. Their Lordships of the Hon'ble Supreme Court in Bhagwant Singh v. Sri Kishen Das reported in AIR 1953 SC 136, have held that the doctrine of restitution is that on the reversal of a of judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment, to make restitution to the other party. Their lordships have held as under:
rt [14] In our opinion, no, exception can be taken to the judgment of the Chief Court in the facts and circumstances of this case and both these appeals would therefore have to be dismissed. On account of the order of His Majesty in Council the amended decree passed by the Civil Judge, Sitapur, on 11-1-1936 must he deemed to have been subsisting all along. All the terms of the compromise were embodied in the amended decree and there was no difference in the two decrees except for the reduction of the sum due from Rs. 3,88,300/2/6 to Rs. 3,76,790-4-3 and the reduction of pendente lite and future interest and for provision for instalments. The compromise decree with the necessary adaptations and amendments became the amended decree and was enforceable as such. it gave the judgment-debtor an opportunity to satisfy, the decree by instalments if he committed no default and to save the property from being sold in satisfaction of it but in case the whole amount of the decree became due according to its terms or if any portion of it remained unpaid it yet had to be satisfied in the same manner as the original compromise decree. During the pendency of the decree- holder's appeal before the Chief Court the judgment-debtor did not obtain any order staying the operation of the amended decree. He was thus bound to carry out the terms of that decree but he failed to pay any of the instalments that fell due in 1936 or 1937. The third instalment, it is true, fell due in December, 1938 after the amended decree had been set aside by the Chief Court but the judgment- debtor had appealed for its restoration to the Privy Council. He should therefore have taken steps to protect himself against being in ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 6 default with payment of three instalments. In order therefore to avoid the default which he would otherwise commit by non- payment of the third instalment it was obligatory on him to pay or offer to pay to the decree-holder an amount equal to the amount of .
the instalment so that three instalments will not be in arrear, or to obtain an order from the Privy Council absolving him from complying with the terms of the amended decree set aside by the Chief Court, even if it was eventually restored. Failing that, he should have obtained a fresh order from the Privy Council fixing the instalments and time for the payment.
He, however, did nothing and adopted the attitude that he need make no payment and considered dared himself absolved from satisfying either the original decree or the amended decree. The of result of this attitude was that the whole of the decretal amount became due on his failure to pay the third instalments provided for under the amended decree in December 1938, and he terms lost the benefit of paying the decretal amount by instalments. The amount due from him in February 1939 under the decree was the same sum rt for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alternatively in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge, Sitapur, in 1936. The position would have been the same if that decree was a subsisting one, and was in execution. If the judgment-debtor could have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the same made in February 1939 could not possibly be regarded as one under the amended decree but could only have become in consequence of the original compromise decree and that compromise decree having became superseded and the amended decree having been restored, the sale held under the reversed decree would surely have in be set aside. On the other hand, if the sale could not have been avoided even if the amended decree which was eventually rested had been in operation at the time of the sale by reason of default of payment of three instruments and the sale was also a necessary consequence under the decree of the Civil Judge and was inevitable, then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a Court to take care that its acts do not injure any of the suitors and if any injury was caused to the judgment-debtor by the sale held in February 1939 it was our duty to undo the wrong caused to him. It, however, cannot be said that in this case any wrong has been done to the judgment-debtor which we are called upon to redress. It is not possible to hold that he was under no obligation to satisfy either one or the other of the two ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 7 decrees, and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to .
the privy Council for the restoration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of it; provisions. Having defaulted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of the judgment-debtor for restitution was wanted, it would result in doing not only an injustice but a wrong to the decree- holder and the court would not be acting fairly and rightly towards him. As already said, in February 1939, both under the original of decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages it restored to the judgment-debtor and mesne profits are decreed in his rt favour, the decree-holder would be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity: it would place the judgment-debtor in a position of advantage to which he is not entitled. The executing Court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to the deeree- holder under the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial Judge, was not availed of by the judgment-debtor as he has no means whatsoever to make any payment. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case. The decree-holder in the present case has derived no advantage to which he was not entitled and the judgment-debtor has lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by the decree-holder. In the words of Rankin C. J, in Doyal Sarkar v. Tari Deshi, 59 Cal. 647, the judgment-debtor is not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, the judgment-debtor was clearly not entitled to restitution. It was held in Gansu Ram v. Mt. Parvati Kuer, AIR 1941 Pat. 130, ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 8 that where a judgment-debtor could not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, .
and the judgment-debtor could not invoke the provisions of S. 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case.
15. Their Lordships of the Hon'ble Supreme Court in Zafar of Khan ad others v. Board of Revenue, U.P. and others reported in AIR 1985 SC 39, have held that in proceedings under Section 144 CPC, party applying for restitution must satisfy the Court in first rt instance that a decree under which it was made to part with the property is varied or reversed or modified in appeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose and therefore restitution must be ordered. Their lordships have held as under:
[11] In order to attract the application of Sec. 14(1), the parties seeking its benefit must satisfy the Court that : (1) that the party as the plaintiff was prosecuting another. civil proceeding with due diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It may be assumed that the earlier proceeding under Sec. 144 of the Code of Civil Procedure was a civil proceeding for the purpose of Sec. 14. It may as well be assumed in favour of the appellants that they were prosecuting the same with due diligence and in good faith, as they relentlessly carried the proceeding up to the High Court invoking its extraordinary jurisdiction. The first of the aforementioned three cumulative conditions can be said to have been satisfied.::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 9
16. Their Lordships of the Hon'ble Supreme Court in South Eastern Coalfields Ltd. v. State of M.P. reported in AIR 2003 .
SC 4482, have held that the principle of restitution has been statutorily recognized in S. 144 of CPC, Section 144 of the C.P.C.
speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. Their lordships have held as under:
of [24] In our opinion, the principle of restitution takes care of this submission. The word 'restitution' in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or rt order of the Court or in direct consequence of a decree or order (See Zafar Khan and Ors. v. Board of Revenue, U. P. and Ors. AIR 1985 SC 39). In law, the term 'restitution' is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, Seventh Edition, P. 1315). The Law of Contracts by John D. Calamari and Joseph M. Perillo has been quoted by Black to say that 'restitution' is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done.
"Often, the result in either meaning of the term would be the same. ............... Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defendant is guilty of a non-tortious misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed." The principle of restitution has been statutorily recognized in S. 144 of the Code of Civil Procedure, 1908. Section 144 of the C. P. C. speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with all expediency in demanding ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 10 compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the .
Court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the Court at the stage of final decision, the Court earlier would not or ought not to have passed.
of There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.
17. rt A Division Bench of the Madhya Pradesh High Court in Ram Ratan v. Mathura Prasad reported in AIR 1971 MP 69, have held that a person receiving benefit under order of a Court and that order when is set aside, benefit received under said Order are to be restituted. The Division Bench has held as under:
[8] Otherwise also, we must quash the order of remand dated 1-4- 1968 passed by the Commissioner because it is the duty of this Court to prevent abuse of the process of the Court. It was held in the order dated 31-8-1966 that possession had not been taken from Mathuraprasad and Ramnarain, and given to Ramratan. The Board of Revenue set aside the Commissioner's finding to the contrary, and his consequent order. However, in the meantime, that is, in pursuance to the Commissioner's order, but before it was set aside by the Board of Revenue, Ramratan was dispossessed and possession was physically delivered to Mathuraprasad and Ramnarain. In this situation, it was not only in exercise of its powers but it was in the discharge of its duty that the Court should have taken back possession from Mathuraprasad and Ramnarain and restored it to Ramratan. It is the cardinal principle of law that an act of the Court cannot be allowed to work injury on the litigant. As observed by Lord Cairns in Rodger v. Comptoir D'Escompte de Paris, (1871) 40 LJ PC 1.
"One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors".::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 11
The doctrine of restitution contemplates that where property has been received by a party in pursuance of a decree or order in his favour, which decree or order is subsequently reversed or varied in other proceedings, the law raises an obligation on the party who .
received the benefit of the erroneous judgment or order to make restitution to the other party for what he had lost and this obligation, it is the duty of the Courts to enforce, unless it is shown that restitution would be clearly contrary to the real justice of the case, Bhagwant Singh v. Sri Kishen Das, 1953 SCR 559 = (AIR 1953 SC
136). Mathuraprasad and Ramnarain could not be heard to say in these proceedings that after taking possession on 18-3-1966, they quietly passed it on to a third person, namely, Smt. Balabai. But, now under the remand order passed by the Commissioner, as upheld of by the Board of Revenue, such an enquiry has to be held by the Tahsildar. It will be clearly an abuse of the process of the Court. That is where this Court must exercise its powers of superintendence under Article 227 of the Constitution.
18. rt The learned Single Judge of the Orissa High Court in Banchhanidhi v. Bhanu Sahuani reported in AIR 1974 Orissa 148, has held that Section 144 CPC can be invoked when a party suffers injury by the act of the Court. The learned Single Judge has held as under:
7-8. Mr. Panda contends that even if Section 144 is not applicable in terms, nevertheless, possession should be delivered to the plaintiff in exercise of the inherent powers of the Court in a proper case, and he asserts that this is a proper case where such inherent power should be exercised. In support of this contention he had relied upon a few decisions which I now will proceed to deal with. The earliest case relied upon by him is a case of Hara Chandra Samanta v. Chintamoni Datta reported in (1913) 21 Ind Cas 84 (Cal). In this case the plaintiffs brought a suit for recovery of property and obtained a decree. The defendants, who were in possession of the suit property on the date of the suit were deprived of that possession by the plaintiffs, though this was not effected by execution of the decree. In this case a decree for possession had been passed and such possession should have been delivered if the decree had been executed. But before execution the plaintiff obtained possession. Thus this case is distinguishable on facts from the case in hand where the judgment and decree were merely declaratory ones and no pos-session was directed to be delivered thereunder. So the ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 12 possession acquired by the plaintiffs cannot even be assumed to have been received in pursuance of the decree.
Reliance was next placed upon the case of Mohammad Hanif v. Khairat Ali, AIR 1941 Pat 577. The facts of this case may be briefly .
stated. One Raja was the proprietor of Serampur Estate. He also acquired Khorposh rights in village Girnia by purchase at an auction sale in 1903. After Raja's death his uncle instituted a suit against his (Raja's) widow (hereinafter referred to as Rani) in respect of all of the Raja's properties inclusive of village Girnia. The Raja had title to village Girnia but had not obtained possession thereof. The suit was decreed and the uncle took delivery of possession. Since the Raja had not obtained possession of Girnia which he had purchased in auction, the uncle brought another title suit against the khorposh-
of dars and got a decree and took delivery of possession. In course of this litigation the uncle died and his son was sub- stituted. After the decree of the Sub-Judge in favour of the uncle, Rani appealed to the High Court. The High Court modified the decree. Rani went further up to the Privy Council and there she was successful to the extent rt that her right was declared to all the self-acquired properties of her husband which included Girnia. In obedience to the decree of the Privy Council, the widow took delivery of possession of all the self-
acquired properties including the khorposh rights in village Girnia by way of restitution under Section 144, Civil P. C. as by that time possession had been obtained by the uncle or his heir. It will be seen from the facts that in uncle's first suit against the Rani village Girnia was also the subject-matter of that litigation. The uncle sot a right to possession pf village Girnia under his decree against the Rani and obtained v possession of the same in execution of a decree for possession passed in a subsequent suit against the Khorposhdars on the footing of his title acquired under the decree in his first suit.
When the Privy Council decision was rendered the uncle or his successor-in-interest was already in possession of Girnia. The decree for possession in the subsequent suit was thus a benefit received in pursuance of the decree that the uncle got against the Rani. That decree having been reversed, the Rani was entitled to all the benefits which she would have been obtained if placed in the position of the uncle which she would have occupied but for the erroneous decree by way of restitution, and those benefits would include possession acquired by the uncle only on account of the erroneous decree. In such circumstances, their Lordships said that Section 144 applied even though possession was transferred merely in consequence of the decree and not through proceedings under it. Even apart from the provisions of Section 144, their Lordships said that the Court was competent to grant restitution under the inherent powers in a proper case. This decision, in my opinion, does not help Mr. Panda's client because the defendant No. 1 did not obtain possession through Court on the footing of declaration of his title.::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 13
In the case of Jai Berham v. Kedar Nath, AIR 1922 PC 269, their Lordships of the judicial Committee of the Privy Council noticed Section 144, Civil P. C. and said that it was the duty of the Court under that section to place the parties in the position which they .
would have occupied, but for such decree or such part thereof as has been varied or reversed. This dictum is in full accord with as has been said by the Supreme Court in the cases cited above. They also proceeded to state another principle, namely, that the duty or jurisdiction of a Court under Section 144, Civil P. C. is also inherent in the general jurisdiction of the Court to act rightly and fairly according to circumstances towards all parties. It was amplified by reference to an extract from the opinion of Cairns. L. C. in Rodger v. Comptoir d' Escompte De Paris, (1871) 17 ER 120 which runs as of follows :
"One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the primary Court, or of any intermediate Court of rt Appeal, but the act of the Court as a whole from the lowest Court which en tertains iurisdiction over the matter upto the highest Court which finally disposes of the case."
It is clear that this principle apart from Section 144, Civil P. C., can be invoked only when a party has suffered injury by act of the Court. In the present case, plaintiff No. 2 did not suffer any injury by reason of any act of Court and so this principle also cannot be called in aid.
In the case of Rohani Ramandhwai Prasad Singh v. Har Prasad Singh, AIR 1943 PC 189 their Lordships of the Judicial Committee noticed Section 144 and said that-
"When a decree is varied or reversed in circumstances giving rise to a right by way of restitution, the right arises automatically and is claimable under Section 144 before the trial Court."
In this case one 'P' brought a suit against 'A', a minor, for possession of A's estate which was under the Court of Wards and got a decree. An appeal was carried to the High Court by 'A'. While appeal was pending in the High Court, by order of that Court, 'P' was put in possession of suit properties on condition that he furnished surety in a sum of Rs. 42,000/-. The surety was furnished and P got possession. The High Court ultimately reversed the trial Court's decree and dismissed P's suit. Their Lordships said that A could get mesne profits from the P in respect of the P's possession of the estate, in pursuance of the High Court's order by way of restitution. But no damages claimed on account of wrongful act of the plaintiff during that period of his possession could be awarded by way of restitution. This clearly reiterates the view that where a party receives a benefit in pursuance of an erroneous decree or on account of such a decree by order of Court as an interim measure a right by ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 14 way of restitution arises which is to be given effect to either under Section 144, Civil P. C. or under the other principles of restitution which is inherent in the general jurisdiction of the Court, The instant case does not come either under any one of these two .
principles. This case does not support the contention of Mr. Panda.
19. A Division Bench of Andhra Pradesh High Court in Ganesh Parshad v. Adi Hindu S.S. League reported in AIR 1975 AP 310, have held that the doctrine of restitution is based on the principle of that acts of the Courts should be allowed to work injury on the suitors. The Division Bench has held as under:
14. The doctrine of restitution is based upon the cardinal rt principles of law that the acts of Courts should not be allowed to work injury on the suitors. Section 144, CPC contemplates restitution in a case where the property has been received by the decree-holder under his decree and that decree is subsequently, wholly or partially, reversed or varied in other proceedings. In such a case, the law raises an obligation on the party, who received the benefit of such erroneous judgment to deliver back the property to the person who had lost it.
20. A Division Bench of the Bombay High Court in S.M. Deshmukh v. G.K. Khare reported in AIR 1975 Bombay 82, have held that Section 144 would apply whenever the decree is reversed or varied howsoever th variance or reversal thereof is effected. It also applies to cases where the decree or order is varied or reversed in a proceeding in the same suit by the same Court, for example where an ex parte decree is set aside under Rule 13 of Order 9. The Division Bench has held as under:
[13] In the next case of Shivappa Dhondappa v.
Ramlingappa Shivappa, 39 Bom LR 112 Rangnekar J.::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 15
regarding the construction of Section 144, observed (P.
115) (of Bom LR) : (at PP. 174. 175 of AIR) :-
"It also is clear that the reversal or variation of the decree must be in the same proceeding between the parties; it .
may be as the result of a successful appeal or an application for review or in any other manner provided for by the Code, and it is also clear that the decree must be between the parties to the record and the reversal or modification of it must be in favour of the party applying or someone claiming under him. Upon the plain meaning of the section, therefore. I am clearly of opinion that it is impossible to hold that, it is some other suit not connected with the suit in which the application for of restitution is made, the decree under which a party has been deprived of property or other benefit is set aside, the section can apply." (underlined by us). Thus the section was construed as extending to a case of reversal or variation of a decree in the same proceedings in any manner provided for by the Code which would take in a rt case of setting aside an ex parte decree under Order 9, Rule 13 of the Code. From the facts it appears that in carrying out the first decree for partition of joint family lands the Collector had to take into account the decree passed in the second suit which was ultimately set aside in the third suit. However the plaintiff in the first suit was not a party to the third suit nor does it appear that in the third suit there was any relief asked for in respect of the decree passed in the first suit. The learned Judge seems to have, therefore, considered the third suit as not connected with the first suit in which the application for restitution was made. It appears to us that the final decree in the first suit had taken into account the second decree and was to that extent or in that sense dependent upon the Second decree, but that is a different thing from where a decree in an earlier suit is declared wholly or in part invalid or void or is set aside by a competent Court in a subsequent suit or proceeding between the same parties or their representatives in interest. Thus the observations in the latter part of the said passage are qualified and restricted to the suit not being connected with the suit in which the application for restitution was made and it does not seem to us that the learned Judge in the observations quoted above impliedly held that even if the original decree was varied or set aside in a subsequent suit between the same parties by a competent Court. Section 144 (1) would not be attracted.
[17] From the above discussion of case law, it is obvious that there is apparently great preponderance of judicial opinion in support of liberal construction of Section 144.::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 16
In the present case we are concerned with an application for restitution arising out of setting aside of an ex parte decree under Order 9, Rule 13 and we hold that such an application falls within the purview of Section 144.
.
[18] Further, as observed by the Supreme Court in Binayak Swain's case AIR 1966 SC 948 (Supra) the obligation on the party who recovered the benefit of an erroneous decree to make restitution arises automatically on the reversal of a decree and necessarily carried with it the right to restitution. A similar view was taken by a Division Bench of this Court also in Krishna v. Bapu Kalu, 60 Bom LR 487. It was, therefore, in the present case obligatory on the trial Court to grant restitution in of the manner provided by Section 144 including restoration of the possession of the property to the landlord. But both the trial Court and the Appellate Court of Small Cause Court took an erroneous view that Section 151 applied failed to exercise their jurisdiction under Section 144. rt [17] From the above discussion of case law, it is obvious that there is apparently great preponderance of judicial opinion in support of liberal construction of Section 144.
In the present case we are concerned with an application for restitution arising out of setting aside of an ex parte decree under Order 9, Rule 13 and we hold that such an application falls within the purview of Section 144. [18] Further, as observed by the Supreme Court in Binayak Swain's case AIR 1966 SC 948 (Supra) the obligation on the party who recovered the benefit of an erroneous decree to make restitution arises automatically on the reversal of a decree and necessarily carried with it the right to restitution. A similar view was taken by a Division Bench of this Court also in Krishna v. Bapu Kalu, 60 Bom LR 487. It was, therefore, in the present case obligatory on the trial Court to grant restitution in the manner provided by Section 144 including restoration of the possession of the property to the landlord. But both the trial Court and the Appellate Court of Small Cause Court took an erroneous view that Section 151 applied failed to exercise their jurisdiction under Section 144.
21. The Learned Single Judge of the Madras High Court in Kandan v. K. Periaswamy reported in AIR 2004 Madras 425, has held that where a property was received by a decree holder by way of execution of a decree and that decree was set aside in view of the ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 17 restoration of suit, in such a case, Court has got a duty to enforce its obligation to restitute the property to the appellant/Decree Holder. The .
Learned Single Judge has held as under:
[9] In the instant case, it is not in dispute that the very decree made in O.S. No. 408 of 1978 was set aside in view of the restoration of the suit. In such case, the Court has got a duty to enforce its obligation to restitute the property to the applicant who was deprived of his possession based on the decree or order, inasmuch as it is a settled law that whenever an ex parte decree or order is set aside, the party who was dispossessed or evicted in pursuance of of such ex parte decree or order is entitled to restitution forthwith, in spite of the fact that, ultimately, on merits, he might loose the cause; and that whenever an ex parte decree or order is set aside, no person who has entered into possession through the party obtaining the ex parte decree or order, can resist or obstruct restitution on the ground rt that he is a bona fide transferee.
[10] Concededly, the respondent is the son-in-law of the decree holder, who obtained the ex parte decree, but not a stranger. Hence, the owed object of the legislature enshrined under Section 144 of the Code of Civil Procedure has been miserably overlooked by the Courts below in dismissing the application filed by the first appellant in R.E.A. No. 143 of 1986, as confirmed by order dated 12-3-1993 passed by the learned Subordinate Judge, Sankarai in C.M.A. No. 34 of 1991.
22. The learned Single Judge of the Rajasthan High Court in Purshottam Singh Narooka v. Pushottam Sharma reported in AIR 2004 Raj 238, has held that where the plaintiff got possession of the temple alongwith Pooja articles in execution of decree prior to setting aside of ex parte decree by High Court, it cannot be said that defendant has not suffered any loss on account of dispossession or defendant has failed to prove his substantive right of restitution.
Defendant was held entitled to benefit of possession of temple which was consequential on reversal of ex parte decree. The Learned Single Judge has held as under:
::: Downloaded on - 15/04/2017 19:25:54 :::HCHP 18[9] I have considered the rival submissions in the light of the judgments relied upon. A bare perusal of the prayer made by the plaintiff in the prayer clause of the suit is that the defendant be removed as a Pujari and possession of the temple marked ABCD in .
the site plan be given to the plaintiff along with Pooja articles. It was case of the defendant that he is hereditary Pujari of this temple and this temple is now a public temple. The ex-parte decree was set aside by this Court but prior to that the plaintiff got the possession of the temple along with Pooja articles in execution of the decree on 21-12-1995. Therefore, the submissions made by learned counsel for the plaintiff are devoid of merit that the defendant has not suffered any loss on account of dispossession or that the plaintiff has not gained any benefit out of the possession or that the of defendant has failed to prove his substantive right for restitution. All the three conditions as observed by Andhra Pradesh and Orissa High Court have been satisfied in the instant case that the decree under which the plaintiff got the possession was set aside by the High Court, that the defendant applying for restitution was entitled rt to the benefit of the possession of the temple and that the relief claimed vide application under Section 144, CPC is consequential on reversal of the ex-parte decree. Prayer to restore the possession as on 31-3-1995 was rightly observed by the trial Court as a mistake as the position as existing on 21-12-1995 was to be restored and has rightly been restored vide impugned order.
23. Courts below have correctly appreciated the oral as well as documentary evidence. Substantial questions of law are answered accordingly.
24. Accordingly, the appeal is dismissed. Appellant is ordered to pay mesne profits with effect from 1976 onwards at the rate of `2,500/- per annum to the respondents, within a period of three months from today.
Pending application(s), if any, also stand disposed of. No costs.
(Rajiv Sharma) Judge December 3, 2015 vikrant ::: Downloaded on - 15/04/2017 19:25:54 :::HCHP